APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO. 08-1-0774) (CR. NO. 06-1-0761)
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
SUMMARY DISPOSITION ORDER
(By: Fujise, Presiding Judge, Leonard and Reifurth, JJ.)
Defendant-Appellant Kelii J.B. Acasia, Jr., also known as Kelii Brady Jr. Juan Balai Acasia (Acasia) appeals from the Judgment of Conviction and Sentence; Notice of Entry and Mittimus, entered on July 13, 2009, in Cr. No. 08-1-0774, and from the Order of Resentencing; Revocation of Probation, entered on July 13, 2009 in Cr. No. 06-1-0761 in the Circuit Court of the First Circuit (circuit court).*fn1
Acasia raises five points on appeal. Acasia claims:
(1) the deputy prosecuting attorney trying his case committed prosecutorial misconduct; (2) the circuit court erred when it denied the defense's motion for judgment of acquittal; (3) the circuit court's jury instruction on the use of deadly force for the protection of a third person defense was prejudicially erroneous; (4) Acasia's use of deadly force was justified under the use of force for the protection of others defense; and (5) the circuit court erred when it revoked Acasia's probation in Cr. No. 06-1-0761 based solely on his conviction in Cr. No. 08-1- 0774.
After careful review of the issues raised, arguments advanced, applicable law, and record in the instant case, we resolve Acasia's points of errors as follows:
(1) The prosecutor did not engage in prosecutorial misconduct because there is no reasonable possibility that the prosecutor's line of questioning regarding Acasia's homelessness contributed to the verdict. To determine whether the alleged prosecutorial misconduct in this case constituted plain error affecting Acacia's substantial rights, this court considered the following factors: (1) "the nature of the alleged misconduct,"
(2) "the promptness or lack of a curative instruction," and (3) the strength or weakness of the evidence against [Acasia]." State v. Iuli, 101 Hawaii 196, 208, 65 P.3d 143, 155 (2003) (quoting State v. Ganal, 81 Hawaii 358, 374, 917 P.2d 370, 386 (1996) (internal quotation marks omitted).
Examining the nature of the alleged misconduct, which was during the prosecution's cross-examination of Kelly Kaluna (Kaluna) regarding her knowledge of Acasia's homelessness at the time of the incident, it is apparent that the topic of Acasia's homelessness was broached for impeachment purposes only. Kaluna's knowledge of Acasia's homelessness was just one in a number of instances where the prosecution attempted to impeach Kaluna's credibility by highlighting her inconsistent statements. Because the nature of the prosecution's questions was not improper, any curative instruction given by the circuit court would have been superfluous. Moreover, after analyzing the entire record it is clear that the evidence against Acasia was strong.
On appeal, Acasia also argues that his homelessness creates unfair prejudice because it raises "inevitable assumption" that he had a greater propensity to commit the crime. Acasia offers no evidence in support of his underlying proposition that the jurors might believe a homeless person is more likely to commit a violent crime than another person. Even assuming arguendo that prejudicial impact existed, if it existed at all, this impact was minimal at best, as the prejudicial effect of this evidence is outweighed by its probative value. See Lewis v. United States, 930 A.2d 1003, 1008-09 (D.C. 2007); see also People v. Thorton, 251 P.3d 1147, 1151 (Colo. App. 2010); Boyd v. State, 963 So. 2d 884, 885-87 (Fla. Dist. Ct. App. 2007).
Because all three factors weigh in favor of the State, there is no reasonable possibility that the prosecutor's line of questioning regarding Acasia's homelessness contributed to the verdict. As such, the prosecution's line of questioning did not constitute prosecutorial misconduct.
(2) The circuit court properly denied Acasia's motion for judgment of acquittal. When viewed in the light most favorable to the State, there was substantial evidence of sufficient quality and probative value to support a prima facie case to enable a person of reasonable caution to support a conclusion of Acasia's guilt beyond a reasonable doubt. State v. Jenkins, 93 Hawaii 87, 99, 997 P.2d 13, 25 (2000). At trial, the State adduced evidence, inter alia, that Ned Nakoa Jr.'s (Nakoa) death was caused by a subarachnoid hemorrhage due to the assaultive head trauma and that multiple witnesses observed Acasia strike Nakoa at least once in the face immediately before Nakoa died. Accordingly, the record is not devoid of substantial evidence supporting the conclusion that Acasia inflicted Nakoa's fatal injury. That there was conflicting testimony on how many of Acasia's punches or kicks Nakoa endured is of no benefit to Acasia because it is the province of the trier of fact, and not the appellate court, to determine the witnesses' credibility and to assess the weight and effect of the evidence adduced at trial. State v. Aplaca, 96 Hawaii 17, 23, 25 P.3d 792, 798 (2001). Therefore, the circuit court did not err in denying Acasia's motion for judgment of acquittal.
(3) and (4) The circuit court's erroneous jury instruction on the use of deadly force for the protection of a third person defense was harmless error. Because Acasia did not object to the jury instruction he challenges on appeal, this instruction was reviewed for plain error only. State v. Mark, 123 Hawaii 205, 219, 231 P.3d 478, 492 (2010). As the concept of retreat set forth in Hawaii Revised Statutes (HRS) § 703- 305(2) (1993) is entirely different from the concept of retreat as discussed in the ...